SULTAN TANVIR AHMAD, J. Through the present decision, we intend to dispose of the titled Intra Court Appeal, filed under section 3 of the Law Reforms Ordinance, 1972, as well as Intra Court Appeals bearing numbers 33125/2022, 33119/2022, 33122/2022, 33115/2022, 33123/2022, 33121/2022, 33124/2022 & 33120/2022, being outcome of the same judgment dated 12.05.2022, passed by learned Single Judge of this Court.
2. Facts, necessary for the disposal of the present appeal are, that the respondents joined National Engineering Services Pakistan (Private) Limited ('NESPAK') on various dates, however, their services were terminated through termination letters, issued on 11.01.2022, invoking clause 11 of terms & conditions of the appointment letters and upon payment of three months' salary in lieu of notice, as stipulated in the terms of service. The termination was assailed through various constitution petitions, which were allowed by learned Single Judge of this Court vide judgment dated 12.05.2022.
Aggrieved from the same, present Intra Court Appeals have been filed.
3. Hafiz Tariq Nasim, learned counsel for the appellants has submitted that the learned Judge-in- Chambers committed error of law and ignored that the respondents were employees of NESPAK which does not have statutory rules and the alleged violation of terms & conditions of service does not attract the Constitutional jurisdiction of this Court. Learned counsel for the appellants has relied on various judgments of Honourable Supreme Court of Pakistan, starting from case titled "The Principal, Cadet College, Kohat and another Versus Muhammad Shoaib Qureshi" (PLD 1984 Supreme Court 170) to case titled "Pakistan Electric Power Company Versus Syed Slahuddin and Others" (2022 SCMR 991) and it is contended that the ratio therein has been misconstrued, thus the impugned judgment is liable to be set-aside being per incuriam.
4. Conversely, Mr. Shahid Anwar Bajwa, learned counsel for the respondents has, however, defended the impugned judgment. Learned counsel for the respondents has submitted that the decisions and policies of the Federal Government and its agencies, are binding upon all the organizations, therefore, the service rules of NESPAK must be implemented in letter & spirit; that the decision of termination by NESPAK, being public organization is arbitrary and whimsical, thus rightly set-aside by the learned Judge-in Chambers; that Federal Government controls affairs of NESPAK, therefore, it is incumbent upon NESPAK to comply with Public Sector Companies (Corporate Governance) Rules, 2013 (the 'Corporate Governance Rules').
5. We have heard the arguments and perused the record with the able assistance of learned counsel for the parties.
6. It is an admitted position that NESPAK is a private limited company, which was incorporated under the provisions of the erstwhile Companies Act, 1913. The terms & conditions of employment of NESPAK are governed by National Engineering Services Pakistan (Pvt.) Limited "Employees Service Rules" (the 'Service Rules'), which were framed by the Board of Directors of NESPAK in pursuance of powers conferred by the Memorandum and Articles of Association, in the meeting held on 02.08.1974.
7. There is no cavil left to proposition, after law settled by the Honourable Supreme Court of Pakistan in various judgments including cases titled "Pakistan Airline Pilots Association and Others Versus Pakistan International Airline and Another" (2019 SCMR 278) , "Pakistan Telecommunication Co. Ltd through Chairman Versus Iqbal Nasir and Others"(PLD 2011 Supreme Court 132) and "Pakistan International Airline Corporation and Others Versus Tanweer-ur- Rehman and Others" (PLD 2010 Supreme Court 676), that where conditions of service of employees are not regulated by a statutory provision(s), the service / employment of employees is to be governed by the principle of "Master & Servant" and the employees of such entity cannot invoke Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for alleged violation of terms of service / employment.
8. The aspect that employee of NESPAK cannot maintain petition in Constitutional jurisdiction of this Court has also been examined in various petitions, including cases titled "Umer Atta-ur-Rehman Khan Versus Ministry of Energy Through Secretary / Chairman, NESPAK and 5 Others" (2021 PLC (C.S.) 1126) and "Ali Mehtab Versus Government of the Pakistan through its Secretary, Ministry of Energy (Power Division), Islamabad & Others" (WP No. 249942 of 2018). In case titled "Umer Atta-ur-Rehman Khan" (supra) following has been observed:- "7. In the light of law settled in the afore noted judgments, the rules which are neither issued under any Statute nor with approval of the Federal Government, cannot be treated as statutory rules.
The perusal of NESPAK rules shows that same are not framed under any Statute but were made by the Board of Directors of the company/NESPAK in exercise of the powers conferred on it by the Article of Association of the Company. Therefore, these rules are merely regulations, instructions and directions for internal use and management of the Company, hence principle of 'Master and Servant' will be squarely applicable to the employees of the company/NESPAK".
9. The Division Bench of Honourable Islamabad High Court, while dealing with similar proposition, with respect to termination of employee of NESPAK, in case titled "Shakeel Ahmed and Others Versus Federation of Pakistan and Others" (I.C.A. No.26 of 2022), reached to the following conclusion:- "5. Assuming that the appellants were regular employees of respondent No.3, the fact remains that respondent No.3 is a company incorporated under the provisions of the erstwhile Companies Act, 1913 and its service rules called "National Engineering Services Pakistan (Pvt.) Limited Employees Service Rules" were made by the Board of Directors of respondent No.3 in their meeting held on 02.08.1974. These service rules have neither been made in exercise of any statutory power nor have they been approved by the Federal Government. These rules cannot be given the status of "law" which could be enforced through a writ of mandamus. These rules are nonstatutory in nature. Since the appellants are not seeking to enforce any statutory rule we are of the view that the learned Judge-in-Chambers did not commit any illegality by holding that the writ petition filed by the appellants was not maintainable......"(Underlining is added)
10. Mr. Shahid Anwar Bajwa's arguments, while relying upon the case titled "Pakistan Defence Officers' Housing Authority and Others v. Lt. Col. Syed Jawaid Ahmed" (2013 SCMR 1707), that in view of alleged non-adherence of Corporate Governance Rules even in absence of statutory rules / regulations of service, the Constitutional petition can be maintainable, is not tenable because the Honourable Supreme Court of Pakistan in "Pakistan Defence Officers' Housing Authority and Others", case (supra) has clearly observed that in order to maintain constitutional petition, it is incumbent upon the petitioner to show statutory intervention, which was available in the said case, in the shape of Removal from Service (Special Powers) Ordinance, 2000 and employees were required to be dealt under the said Ordinance. In view of the admitted position that service rules are prepared by board of directors of a private limited company, having no statutory authority, the case does not meet the criteria and yardstick laid down in paragraph No.50 of "Pakistan Defence Officers' Housing Authority and Others", case (supra). Even otherwise, consequences of violation of Corporate Governance Rules are given in rule 25 of the same, in form of fine besides other consequences provided in the Companies Ordinance, 1984 / the Company Act 2017.
11. In the recent past, the Honourable Supreme Court of Pakistan has dealt with the cases of the companies having similar status as of NESPAK, which includes "Pakistan Electric Power Company" case (supra) and case titled "Sui Southern Gas Company Limited and Others Versus Saeed Ahmed Khoso and another"(2022 SCMR 1256). The clear distinction has been drawn between statutory bodies and corporation, as opposed to the limited companies, for the purposes and the subject in hand. It will be beneficial to reproduce paragraphs No.5 and 6 of "Sui Southern Gas Company Limited and Others" case (supra), which are as follows:- "5. We have heard the learned counsel for the parties and gone through the record. The only question requiring determination by this Court is whether or not the High Court correctly exercised its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. It is settled law by this Court that where employment rules are non-statutory in nature, the relationship of employer and employee is governed by the principle of master and servant. The learned ASC for the Respondent does not contest, neither that the rules governing terms and conditions of employment of the Respondent are non-statutory nor that ordinarily the principle of master and servant would apply in governing the relationship between the employer and the employee.
However, he has attempted to draw a distinction between the Companies owned by the Federal Government and the Companies registered under the Companies Ordinance. 1984/Act, 2017 which have private shareholders to argue that where the State has a stake in the Company then it has to be treated on a different footing and its rules are to be treated as statutory in nature. In this context, he has relied upon the judgments of this Court reported as Muhammad Ashraf Tiwana v. Pakistan (2013 SCMR 1159), Muhammad Rafi v. Federation of Pakistan (2016 SCMR 2146) and Pakistan Defence Officers Housing Authority v. Itrat Sajjad Awan (2017 SCMR 2010).
6. Having gone through the aforenoted judgments, we find that the said judgments relate to the Securities and Exchange Commission of Pakistan, the Civil Aviation Authority and the Defence Housing Authority. There is a clear distinction in the treatment of statutory Bodies and the Corporations as opposed to the limited companies. Consequently, we are not impressed by the argument of learned counsel for the Respondent that a Company in which the Government has a shareholding is to be treated at par with statutory Corporations and Authorities".
(Emphasis supplied)
12. It appears that while assuming jurisdiction in the matter, the above discussed questions & principle of law enunciated by the Honourable Supreme Court of Pakistan, have escaped notice of learned Judge-in-Chambers, which are binding on all the Courts of Country, therefore, we are of considered view that petitions filed by the respondents, before this Court, are not maintainable.
13. For what has been discussed above, we allow the present Intra Court Appeal along-with the other connected appeals. The impugned judgment is set-aside. The writ petitions stand dismissed being not maintainable. No order as to costs.